As the post-racial myth of America continues to be ground to dust, political leaders must be careful to acknowledge and repair results of a justice system based on racism and inequity — especially when it comes to youth confined and controlled by the Shelby County Juvenile Court.

Memphis-Shelby County Tennessee citizens recently received a signal that seriously undermines the value of black youth. In announcing the termination of the Department of Justice’s investigation of Shelby County Juvenile Court, Memphians again must question whether care and concern for the lives of black youth will ever become a national, state or local priority.

Now that the court is insulated from federal critique, we must imagine how the juvenile justice system might be differently structured if we challenged underlying assumptions. These solutions must include directly addressing systemic bias and focusing on providing more helpful and caring interventions for troubled youth and families in their own communities, well before becoming involved in the justice system.

Under Sessions’ watch, nothing surprises

Although disappointing, news of the DOJ pulling out of its six-year investigation of Shelby County Juvenile Court is not surprising. Various county leaders, many of them white males including former Shelby County Mayor Mark Luttrell, Judge Dan Michael and former Shelby County Sheriff Bill Oldham, have insisted the court system is capable of handling its own problems. Besides, the agency, under U.S. Attorney General Jeff Sessions, has not been sympathetic to claims of civil rights violations.

Justice officials began investigating the court in August 2009 following a citizen complaint about conditions and treatment of youth. This resulted in a December 2012 Memorandum of Agreement subjecting the court system to twice-a-year federal investigations that monitored progress on addressing the numerous negative findings.

The most recent report on equal protection indicates that although much progress has been made, the system fails in several areas. In particular, the July 2018 Equal Protection Monitor Report indicates:

“The Juvenile Court has undertaken a series of initiatives to reduce or eliminate race disparities. While those efforts at juvenile justice reform are to be applauded, the unfortunate fact is that the racial disparities in the operation of the justice system are nearly as great as those which led to the original MOU in 2012.”

“While those efforts at juvenile justice reform are to be applauded, the unfortunate fact is that the racial disparities in the operation of the justice system are nearly as great as those which led to the original MOU in 2012.”

A monitor’s report shows black youth are twice as likely to be held in detention. Additionally, formal proceedings initiated against youth on alleged offenses are 1.5 times more likely for black youth. As a result, the assessment authored by criminology expert Dr. Michael Lieber, concludes although Shelby County Juvenile Court has made strides in implementing strategies and programs “either not enough time has passed to evaluate how successful these efforts have been; not enough youth or participants have been involved; or the juvenile court has not provided aggregate data to assess the initiatives’ effectiveness.”

Overall, Shelby County is only in partial compliance with about half of the agreement’s equal protection requirements.

Although the court is 87 percent compliant with the federal memorandum on due process violations, according to Due Process Monitor Attorney Sandra Simkins’ report, “significant problems remain in this area.”

Not only have numbers of youth facing transfer to adult court continued to climb, according to Simkins, “inconsistent discovery practices continue, and recent changes in court practices have caused new issues regarding psychological evaluations.”

At the midyear point of 2018, Simkins notes at least eight cases where attorneys made requests for psychological evaluations of youth in custody prior to transfer hearings were denied.

Court leadership prefers to shift blame

Despite scathing assessments, Shelby County Juvenile Court leadership has repeatedly attributed the DOJ’s negative findings to the demographic makeup of Memphis, which is 68 percent black.

In his May 2018 report, for example, Judge Paul Summers, who then served as the county’s settlement coordinator, claimed that as an adult, white male member of the Tennessee judiciary, he understood the culture of Memphis well enough to independently conclude the court does not have “an equal protection, a detention or due process problem,” despite the conclusions of 12 equal-protection monitor reports to the contrary.

To be clear, the DOJ tracks the odds a black youth’s case will be handled in a harsher manner than a white youth at different decision points in the youth justice process. Memphis’ population has little relevance to disparate treatment, and the court is simply noncompliant with requirements of the federal memorandum.

Nor has Shelby County Juvenile Court met an unspoken agreement with citizens to become better at handling the cases of black youth. The federal government’s involvement with the court has served as a means of accountability and transparency, which have not been traditional strengths of the youth justice system. Leaders and citizens share concern that terminating oversight prematurely will cause the juvenile court system to slip into old practices and/or fail to complete its work.

Community involvement and buy-in are fundamental to the court’s future success. Premature termination threatens public attitudes toward Shelby County Juvenile Court and its healthy function, and undermines accomplishments already made through monitoring. The high threat of regressive institutional practices has been illustrated in other attempts to cancel federal oversight agreements, such as the Arizona Department of Juvenile Corrections.

Unchecked implicit biases likely contribute to the overall ineffectiveness of the court in keeping black youth out of the system. The Memphis Shelby Crime Commission reports that in 2017, about 40 percent of youth in this system were repeat offenders with prior delinquency complaints. Although re-offense rates are not broken down by race, 93 percent of cases referred to the court in 2017 represented black youth.

What’s it going to be: Status quo or status no?

Poverty, absent parent-child resources, and lack of economic and other opportunities give rise to the crimes so many local youths commit. That is no excuse to ignore what justice officials have concluded on repeated occasions: Shelby County Juvenile Court policies and practices discriminate against black youth and routinely deny them due process.

For many, lack of a stronger stance [by County Mayor Lee Harris] urging continued DOJ involvement is disappointing and represents continued local government allegiance to the status quo.

Newly elected Shelby County Mayor Lee Harris, who is black, has committed to look closely at problems at the court, stating local monitoring will continue regardless of what the feds do. For many, lack of a stronger stance urging continued DOJ involvement is disappointing and represents continued local government allegiance to the status quo.

The local self-correction Harris promotes is not impossible, and courts all over the country have independently taken steps to address systemic bias, even without pressure from federal officials.

However, a system claiming it does not have a due process or bias problem when data demonstrates otherwise and touts “unequivocally” it is a “model system” for Tennessee and the United States, in the face of a pending negative federal disparate treatment investigation is surely unequipped for making such transformative systemic changes. Unfortunately, of the 25 measures the court has taken to improve, none are data-driven solutions that directly address the problem of disparate treatment of black youth, even under federal scrutiny.

Demetria D. Frank

In the media and our daily lives, we’re constantly reminded of the percentage of unmarried black women, fatherless homes and black women having children out of wedlock. Hence, the narrative set by Summers is very easily sold to much of the public and Sessions’ DOJ.

Evoking well-worn narratives, Summers notes, “It is a fact that most of the juvenile crimes are committed by young black males with no parental supervision, no goals, no stable family, little education and no self-worth.”

Since law and policy typically reflect cultural values and norms, courtroom practices have wrought more punitive treatment against black youth. The culture and tradition of Shelby County Juvenile Court inevitably includes bias and prejudice that affect policies, practices and application of legal rules, explaining its repeated disparate results and lack of regard for the constitutional rights of black youth.

Demetria D. Frank is an assistant professor of law and director of diversity and inclusion at the University of Memphis School of Law.

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